February 26, 2006

Some, like Daniel McConchie of Americans United for Life, which did not take part in [South Dakota's effort to pass a law banning nearly all abortions], said they would have preferred to reduce abortions by continuing to press for restrictions like waiting periods, parental and spousal notification laws, and the prohibition of certain types of abortion — quieter measures that draw less attention and strike a less head-on blow to Roe.

"There is tension," Mr. McConchie said, between those who agree with him about abortion but not about strategy. "A lot of those people — what we tend to think of as the purists — in essence think that people who would push a more incremental approach are sellouts. I understand that type of zeal, but there is a severe penalty you can end up paying."

Those who pressed for the chance to overturn Roe said they had seen hints already that the new Supreme Court, with two recent appointments by President Bush, might be open to reconsidering Roe. One such hint, they said, came just last week, when the court announced it would review a challenge to a federal law prohibiting an abortion procedure, what these opponents call partial-birth abortion.

"It's the right thing," said Leslee Unruh, leader of the National Abstinence Clearinghouse. "It's like Martin Luther King's approach — it's never the wrong time to do what's right. South Dakota is in a unique position to do something for the 800 children aborted every year."

But these opponents are also counting on the retirement of Justice John Paul Stevens and the appointment by President Bush of another justice amenable to overturning Roe — all uncertain calculations, Mr. McConchie said. Think of what damage may be done, he said, if the court hears the case, but reaffirms Roe. And, should their forces devote money to this strategy, he asked, over all other efforts?

This problem is inherent in political activity that operates through the courts. Many different individuals and groups can move themselves into a position where they can file a case, which they then can structure and control. You may care about the issue that will be decided, but they will determine the strategies and arguments. It will be those who work most quickly, not those who gather the most political support, who have the most effect.

IN THE COMMENTS: Palladian writes:

By the way, does anyone else find the name "National Abstinence Clearinghouse" to be as absurd and hilarious as I do? I imagine getting a sweepstakes mailing from them with a picture of Pope Benedict on the envelope telling me that I may already be a sinner.

53 comments:

Prof. Althouse, you hit the nail squarely on the head. Using the courts to decide political issues is THE problem with abortion law and has been since Roe. It's no different than the current practice among plaintiff's bar to use (state) courts to create products liability and other tort law. The whole process is completely undemocratic and has the further disadvantage of giving the losing side the feeling that their values and opinions were given no weight in the making of public policy.

The idea that we should ban abortions for pregnancies that occur via rape and incest seems rather barbaric.

Pro-lifers who advocate this sort of universalism are no better than Nigerian Muslims who stone rape victims to death.

And a lot of them think abortion in any case is awfully barbaric, quite as barbaric as dumping newborns in the woods to be eaten by animals or whatever. So? It's just rival conceptions of what really counts as barbarity (much the same way hardcore Wahabbi Muslims probably look at American civilisation and find it unutterably diseased and corrupted). It's the clash of civilisations!

More on topic -- I think there's a problem with cases brought "before their time," so to speaak. Because anyone can bring the case, there may be some incentive on the part of opponents of some policy, to bring the case supporting the policy prematurely, so as to obtain a precedent against it. I wonder whether that's not going to happen with gay marriage.

Already, even though there have been gay marriage victories in the courts, those victories have, as far as I can see, backfired horribly, and led to a spate of state-Constitutional measures protecting existing marriage laws against equal protection or other challenges, and breathed new life into the movement to implement just such a measure in the Constitution. I can imagine that in some states, they might want to shore that up with a few precedents establishing their preferred interpretation of the new provisions in their state Constitutions, to ward off future judicial attempts to interpret their force away.

Because anyone can bring the case, there may be some incentive on the part of opponents of some policy, to bring the case supporting the policy prematurely, so as to obtain a precedent against it. I wonder whether that's not going to happen with gay marriage.

Though not court case, this is what happened with Don't Ask, Don't Tell. A mix of opponents of gays in the military with the more radical and demanding of his gay supporters, managed to get the issue to the forefront so early in Clinton's presidency that he was boxed in by it. He didn't have any juice with the military, hadn't established a relationship with Congress, and if I recall correctly, was on the defense with his failed Attorney General appointments. He was weak, and it resulted in a terrible policy.

Elizabeth- I remember thinking during Clinton's first campaign, even as a starry-eyed gay dreamer in high school, that it was perhaps a bit too bold when he said that his first official act as president would be lifting the ban on openly gay people serving in the military. You're right, he got himself crushed into an unfortunate corner and the result was just as bad (worse, as DADT is even more illogical) as the problem he originally set out to remedy.

I'm an idealist, so I could never be an effective politician, but I do recognize that there is wisdom in a slower, incremental democratic approach to solving these issues. Nothing fires up opposition more than an undemocratic judicial decision.

By the way, does anyone else find the name "National Abstinence Clearinghouse" to be as absurd and hilarious as I do? I imagine getting a sweepstakes mailing from them with a picture of Pope Benedict on the envelope telling me that I may already be a sinner.

"By the way, does anyone else find the name "National Abstinence Clearinghouse" to be as absurd and hilarious as I do? I imagine getting a sweepstakes mailing from them with a picture of Pope Benedict on the envelope telling me that I may already be a sinner."

“The idea that we should ban abortions for pregnancies that occur via rape and incest seems rather barbaric. Pro-lifers who advocate this sort of universalism are no better than Nigerian Muslims who stone rape victims to death.”

What do the circumstances of conception have to do with whether the unborn have a right to life? Either the unborn have that right or they don't. As tragic as the conception may be, I don’t see where there’s a justification for the ending of innocent life. At the very least, it seems a court hearing wouldn’t be all that cumbersome. In the case of rape or incest, there's likely a court proceeding going on already and that issued can be dealt with there.

By the way, I deeply resent being lumped in with the Muslims you mention. How do you think saying that kind of thing will get me to your side?

“If a South Dakotan woman doesn't report a rape, I assume that the rapist will get parental rights of the child that the victim is forced to carry to term. Bummer for women in S. Dakota.”

Oh, for goodness sake! This is the same talking point that opponents to the proposed law in South Dakota are spouting so it must be the latest argument du jour.

How can you sell women so short? Surely the rape victims of South Dakota will do something about their circumstances! Surely, they’ll file a report! Especially if the possibility exists – and I seriously doubt this is actually happening – that the rapist will have parental rights if victim takes no action.

But, all right, let’s say the rape victim cannot report the rape for whatever reason. Surely she can muster the courage and will to do something about that when the baby is born. She can easily file to have the rapist’s parental rights terminated. Will the rapist contest this? I don’t have much experience with rapists but I seriously doubt it. I really don't think rapists are really concerned about asserting their parental rights to the offspring of their crime. It’s hard enough to get fathers to come forward and admit paternity in a routine case of illegitimacy. I don’t think it’s going to be very hard for a judge to find reasons to terminate a rapist’s parental rights.

And how about this for a solution: Placing the child for adoption. The burden is then placed on the adoptive parents, or the state, to have the rapist’s rights terminated. The rape victim, who would have had no problem aborting the baby if the law had allowed it, should be eager to voluntarily relinquish her rights.

Ann, I know I'm being off-topic - you'd rather talk about the rift between pro-lifers over the best way to restrict abortion - but I couldn't let those two comments go without saying something. Thanks for your patience.

At the very least, it seems a court hearing wouldn’t be all that cumbersome. In the case of rape or incest, there's likely a court proceeding going on already and that issued can be dealt with there.

Perhaps I'm being dense, but if SCOTUS upholds a state ban on all abortion, with no exception for rape or incest, what is the point of a court hearing?

Under what circumstances could a girl/woman even get a court hearing? She's pregnant. It doesn't matter if she's a 10 year-old raped by her father. The state requires her to give birth.

Surely the rape victims of South Dakota will do something about their circumstances! Surely, they’ll file a report!

Many rape victims don't report it, especially in cases of date rape.

But, all right, let’s say the rape victim cannot report the rape for whatever reason. Surely she can muster the courage and will to do something about that when the baby is born. She can easily file to have the rapist’s parental rights terminated.

Why would the court believe her? How easy would it be to terminate parental rights?

Placing the child for adoption.

I believe that both parents are required to legally agree to this decision.

Ann, I know I'm being off-topic - you'd rather talk about the rift between pro-lifers over the best way to restrict abortion

But isn't that the point? The South Dakota law is more alarming to the general population then a law concerning parental consent. It's not a smart political strategy.

The law reveals certain legal and practical consequences of criminalizing all abortions that the movement might prefer not to publicize.

This is an interesting development. I agree with the general point that Roe v. Wade created a mess; but what now? Suppose the South Dakota law ends up before SCOTUS, do they decide that it is OK to forbid abortion even of a fetus resulting from a young woman's rape by her father? Or do they decide that states should determine for themselves whether or not to allow abortion? The outcome in either case would be that South Dakota's law stands, and a South Dakota woman raped by her father must bear the child or go to another state. The media and liberals will say that the Roberts/Alito Court decides that it is OK to make a woman bear her rapist's child. Constitutionalists will say that the SCOTUS turned the issue over to the states. I agree with the constitutional aspect; but the public, the media, and liberals are going to be appalled by the result, as they should be.

I am still trying to figure out when life actually begins? Does it begin at conception? After a certain number of cells have multiplied?

Second and third trimester abortions seem unconscionable. Miss two periods and the woman is good for go on an abortion?

Haven't we been down this road before? Abortion is a poor method of birth control, in any case.

It seems to me that NOW, NARAL, et al, want to use abortion in place of birth control pills and mechanical devices. Then they present their case by shrieking about backalley abortion clinics after rape/incest.

Nobody that I know talks about statistics to back up their arguments. The only thing I remember was something about "keep your laws off my body" or something along those lines.

Rational arguments will prevail if the hysteria is left out.

In the meantime, monitor your kids and act like parents. No porn sites on computers at home that kids can access, teach boys to respect girls, and teach girls to dress like young ladies and not like neighborhood tramps.

We should spend as much time talking about STD's as we do about abortion.

Cokaygne offers a good perspective. (Hmmm...) All those folks who say, go ahead and overrule Roe v. Wade and leave it to the states will now have glaring them in the face South Dakota as THE example of what a state does when it's free to act on its own. It will be extreme and oppressive, apparently. Therefore, lots of people will reason, abortion cannot be left to the states (or, more generally, to the political process).

Therefore, lots of people will reason, abortion cannot be left to the states (or, more generally, to the political process).

Well, possibly, if they didn't realise already that a sizeable portion of the US population wants a complete ban on abortion. I think the disadvantage isn't so much the law itself, as that (if it is in fact administered), the pro-abortion forces may at last have concrete propaganda material with which to combat images of dead fetuses, and young men and women born post-Roe thinking "there, but for the grace of God go I." They'll have genuine current stories of the human cost of banning abortion (as opposed to hysterical fear-mongering about theoretical coathangers in back alleys), and they can use those stories to gin up outrage. A rape story would be highly effective here, although I understand rapes make up such a miniscule proportion of all abortions that it may take a good while for such a case to come along. Even without such an extreme case, though, such individualised human stories may enable pro-abortion activists to regain the PR offensive.

Possibly even in South Dakota -- after all, if pushback in South Dakota led to a legislative amelioration (e.g. allowing abortion for rape and abominable incest), I think that would then turn into Exhibit A in favour of legislation. Of course, that really depends on what the people of South Dakota want. They may well want the absolute abortion ban.

Richard Fagin - I think that's a bad analogy. If you left it up to the legislature to create causes of action and liability law, we would get terrible law, because corporations know they're going to get sued at some point, and will buy legislative bars against certain causes of action, where as FUTURE plaintiffs have no idea they are going to be injured by a product or by medical malpractice at some future time, and therefore have no reason to lobby the legislature to create causes of action.

There are two problems, as I see it, with the "leave it to the legislature" argument, as it applies to abortion. For one, abortion bans are very old, and if Roe is overturned, pre-Roe laws that were passed in a very different era will come back into effect. Many of those laws were passed before the women's liberation movement and, indeed, many of them were passed before women even had the right to vote. Its much harder to take a law off the books than it is to pass a new one. Furthermore, women are enormously outnumbered in every legislature in the country, moreso at the state level than at the Federal level. Remember, you're not leaving it up to the people, you're leaving it up to the legislators, and organized religion has much mroe pull with state legislators than do poor, unorganized women. Therefore, women will be stuck with cruel and anti-feminist laws that they had no say in passing and will have little hope to change.

The second point I would make is just to reiterate what some other commentors have said, and that is that, left to their own devices, states pass mean-spirited and foolish laws. What South Dakota is doing should not come as a surprise to anybody. There's a reason the Federal government needed to overpower the states in the areas of: Jim Crow laws, bans on women's suffrage, unfair gerrymandering, cruel and unusual punishment, laws banning flag burning, etc. Call it judicial activism all you want. Prejudice doesn't travel well, and simply because a one-vote majority can pass a law in South Dakota or any number of other states doesn't necessarily mean that it is fair. If it wasn't for the 'activist' court, we would live in one hell of an unfair country. And the reason is that no state legislator, or, for that matter, no federal legislator wants to take an unpopular position. On many issues, the "punt" up to the courts, in others, they "fumble" down to the courts through their own unfairness.

"Perhaps I'm being dense, but if SCOTUS upholds a state ban on all abortion, with no exception for rape or incest, what is the point of a court hearing?"

I’m saying modify the state ban to allow for a court hearing in cases of rape and incest.

"Under what circumstances could a girl/woman even get a court hearing? She's pregnant. It doesn't matter if she's a 10 year-old raped by her father. The state requires her to give birth."

See my proposed modification. And the ease of said hearing since likely a court action is already under way for the rape/incest, except for those cases where rape/incest go unreported. Then require the abortion provider file a motion for permission.

See my suggestion of having an abortion provider file for permission to perform the abortion.

"Why would the court believe her? How easy would it be to terminate parental rights?"

See my prediction that the termination of a rapist’s parental rights are likely quite easy. In adoption cases, a notice to terminate parental rights is filed for when consent cannot be obtained from the birth parent. The birth parent then has the right to make his case. Family court judges generally recognize it takes more than DNA to assert parental rights. Committing rape to conceive a child would be excellent grounds to terminate rights, which are terminated all the time.

"(For adoption) I believe that both parents are required to legally agree to this decision."

See my brief explanation of the termination of parental rights. Consent is preferred but not necessary. (And an odd point for you to make, isn't it? No consent is necessary from the birth father for an abortion.)

cokaygne said...

"Suppose the South Dakota law ends up before SCOTUS, do they decide that it is OK to forbid abortion even of a fetus resulting from a young woman's rape by her father? Or do they decide that states should determine for themselves whether or not to allow abortion? . . . (T)he public, the media, and liberals are going to be appalled by the result, as they should be."

I’m sure the media and liberals will be appalled. The public might not be. How awful for the states to decide for themselves what kind of abortion laws they should have. We aren't talking about denying people the right to vote or even Civil Rights. We're talking about depriving the right to life to the unborn. That's a very different thing.

David said...

"In the meantime, monitor your kids and act like parents. No porn sites on computers at home that kids can access, teach boys to respect girls, and teach girls to dress like young ladies and not like neighborhood tramps."

If it wasn't for the 'activist' court, we would live in one hell of an unfair country.

Do people just not think through these things? The whole reason anti-abortion people are exercised about abortion is that they think the court enshrined a monumental injustice in our Constitutional law when they decided Roe v. Wade isn't it? Rhetoric about how the activist court helped alleviate other injustices is quite beside the point when your opponents see a great big, fat injustice crying out to heaven right there in front of them because of that activist court and its peculiar notions about "justice."

Evidently not because women's suffrage and banning State discrimination based on race were issues that were dealt with through the political process by constitutional amendments passed by Congress and ratified by the States with the courts merely upholding the outcome of that process.

Abortion on the other hand has no such legitimacy which makes it fair game unless the pro-abortion folks wants to try amending the Constitution via the process of a constitutional amendment rather than looking for an activist court to legislate for their preferred policies in the culture wars.

I raised those issues as examples of where the Federal government couldn't just "leave it up to the states" because what the states were doing was so unfair.

And as for the racial discrimination thing, remember, the Court was ten years ahead of the Congress on that issue, and in Congress it only passed after the longest filibuster in history. Part of the reason Congress got involved was because, after Brown v. Board, it couldn't continue to ignore the issue the way it always had in the past.

Part of the reason Congress got involved was because, after Brown v. Board, it couldn't continue to ignore the issue the way it always had in the past.

Couldn't they have? I am not an historian or scholar of the period, but this strikes me as highly dubious. For one thing, there's ten years in between. Is there really a strong causal connection running from Brown to the Civil Rights Acts? I think it's more likely that they were simply outgrowths of the same post-WWII cultural moment.

Pete said: See my prediction that the termination of a rapist’s parental rights are likely quite easy. In adoption cases, a notice to terminate parental rights is filed for when consent cannot be obtained from the birth parent. The birth parent then has the right to make his case. Family court judges generally recognize it takes more than DNA to assert parental rights. Committing rape to conceive a child would be excellent grounds to terminate rights, which are terminated all the time.

Pete, I think this is very unrealistic. Most rapes are date rapes. And the standard of proof required for most terminations of parental rights is clear and convincing evidence. So, you have many, many cases where it is simply the victims word against the rapists, on the issue of whether the sex was consensual. You really think it will be obvious, from a fact-finding perspective at the time of trial, that the woman is telling the truth, and not being vindictive? Keep in mind that you need much more than equipoise to find in favor of TPR -- you need to think that the woman is significantly more credible than the alleged rapist.

The truth is that if you force a woman to bare a child to term that was produced by rape, it may be very hard to meet the burden of proving up rape when it comes to TPR time. This is equally the case, if the woman puts the child up for adoption.

Do I really think this is a big problem? Probably not -- because very few rapists are going to be showing up to claim parental rights. But it does show the logical difficulties of forcing women to be vessels for unwanted fetuses to gestate in. (see andrew koppelman's interesting argument that the proper source of constitutional protection for abortion rights is the 13th Amendment's prohibition on forced labor...)

None of that means that I am a big fan of Roe, as a constitutional decision. But I think that SD is making an asinine policy choice here, and that the states are really, really foolish to restrict abortion rights. Regulated abortion is favored by a strong majority of Americans, and is also the better public policy.

For one thing, there's ten years in between. Is there really a strong causal connection running from Brown to the Civil Rights Acts? I think it's more likely that they were simply outgrowths of the same post-WWII cultural moment.

I just read Juan Williams' bio on Thurgood Marshall (very good read). I suggest you read the book as it will help you answer that question. (YES)

Interesting ideas about the court hearings. However, the S. Dakota legislature quite explicitly turned down the exceptions of rape, health problems and/or incest.

I agree with marghlar's assessment about rape. Date rape is hard to prove, especially if the victim does not report it immediately. Many victims have a psychological urge to shower after an attack. This, of course, helps remove critical physical evidence.

I have never been raped. However, one of my friends was raped in law school. After the date, a fellow student raped her in her apartment.

The next day he put flowers and a teddy bear in her law carrol with a note. My friend never reported this rape. But years later she is still traumatized by the event.

My friend was not impregnated. But she could have been. That rapist would have had legal rights over the child. I think it would have been hard to convince a judge that she was raped. She didn't photograph her bruises. She didn't go to a hospital to have the physical evidence collected.

By the time she calmed down and could think rationally, she had lost the physical evidence.

Think about the circumstances in which rape occur. Abusive ex-boyfriends, and ect.

The rapist could have parental rights over the child. Parental rights are notoriously hard to eliminate. We all know this is why children spend years in the foster system without the ability to be adopted.

“. . .Most rapes are date rapes. And the standard of proof required for most terminations of parental rights is clear and convincing evidence. So, you have many, many cases where it is simply the victims (sic) word against the rapists (sic), on the issue of whether the sex was consensual. You really think it will be obvious, from a fact-finding perspective at the time of trial, that the woman is telling the truth, and not being vindictive? Keep in mind that you need much more than equipoise to find in favor of TPR -- you need to think that the woman is significantly more credible than the alleged rapist.”

Okay, let’s say your worst case scenario plays out: in every case, the victim fails to produce the necessary evidence to meet the requirements of the rape exception and has to carry the baby to term and deliver. The rapist has had some change of heart and wants to change his ways and – well, never mind. The whole scenario falls apart because we have to assume the rapist has had a change of mind. Goodness, Marghlar, what kind of world do you live in? As I said, it’s hard enough to get a father to assert his rights under normal circumstances. What makes you think a rapist will want to have anything to do with the results of his handiwork? Oh, he wants to use the baby as a means to keep in contact with his victim? Please. Rapists don’t want to have anything to do with their victims. Besides, after delivering, the victim, who had no qualms about terminating the pregnancy, can easily relinquish her parental rights to the child. Is the rapist still coming around and pestering her? You mean he has time after caring for this child he so desperately wanted? Well, then, it’s VPO time. And, let me tell you, a VPO will be just the thing the state, or an adoptive couple, would love to have on file to move to have his rights terminated.

But, never mind, we can go on and on and on like this. Suffice to say, it’s entirely unlikely that a rapist will assert his parental rights.

”The truth is that if you force a woman to bare (sic) a child to term that was produced by rape, it may be very hard to meet the burden of proving up rape when it comes to TPR time. This is equally the case, if the woman puts the child up for adoption.”

Terminating parental rights is not difficult when the father is a rapist or otherwise fails to demonstrate any kind of interest in the child. See my discussion above. And, yes, it may be difficult to prove rape but not impossible. And shouldn’t it be difficult to terminate innocent life? It’s difficult to deprive a convicted killer of life. Why a different standard for innocent life?

Could you summarise his argument and the historical evidence, or point me to a page that does?

I don't recall a specific page where the case is made. It's more a general feeling I've interpreted from the book. By the time LBJ started the Civil Rights Acts through congress, Marshall had been plucked from the Courts and made Solicitor General. So the chief arguer in Brown was working for the government, and I'd say he had a natural interest in seeing Brown results followed. He did seem to have LBJ's ear.

But really, read the book. Check it out of the library. It's a good weekend read.

Sorry, my reply above posted after yours so I didn't mean to ignore you. The last article I read said South Dakota was still considering a rape/incest exception but I stand corrected, if what you say is true.

I'm sorry to hear about your friend. Of course she's still traumatized by the event and rightly so. I'm interested to know, though, what happened after the teddy bear and flowers. I'll presume this wonderful guy gave up on her and moved on, which would be my point: rapists aren't good guys and don’t hang around and are highly unlikely to assert their rights and even if they do, the victim can easily sign away hers and be done with it and him.

So in your scenario, we’re faced with terminating the parental rights of a rapist and you think that’s hard? Yes, state foster care programs are chock full of children who are unadoptable because parental rights haven’t been severed but that’s not because it’s hard to do: the policy of most, if not all, state foster programs is to preserve families, which is a topic for another discussion. In these cases, parents refuse to give up their rights and agree to counseling, drug programs, job placements services, whatever, to correct the conditions that provided for placement of their children in the foster care program in the first place. The state agrees not to seek termination of those rights if the parents keep their end of the bargain but after repeated failures, those rights are terminated and their children are then adoptable.

But, okay, let’s say the victim has given birth, relinquished her rights, and only the father’s rights remain. We’ll presume she’s named the father – if not, there are other procedures to sever parental rights, this child won’t be left in limbo just because the father hasn’t been named – and notice is filed. The rapist has his chance to respond: no, that’s not my child and I’ll gladly assert that, or yes, that’s my child, I distinctly remember the romantic night on which it was conceived, etc. If the former, problem solved, if the latter, then the burden is on the rapist to prove why the state shouldn’t terminate his rights. Not hard to do when the rapist hasn’t been around, couldn’t be bothered to stay in touch with his victim enough to know if he’d fathered a child, might’ve raped someone else who did file charges or at least has history of assault, etc. Again, rapists are rapists and they won’t have a history of being attentive to their parental rights.

I’m sorry, but this argument holds no water. I just don’t think ending innocent life is preferable to the slim possibility that a rapist may assert his parental rights and prevail.

Pete: I could imagine a situation where the rapist is a man who is distraught about the loss of a relationship to a woman. There are men who use violence when women reject them. Allowing this kind of person to further hold onto the woman by imposing pregnancy on her is a real horror. Pregnancy is a long physical ordeal for a woman. You would let the rapist impose it on a woman, in addition to imposing the short physical ordeal of the rape itself.

I'm interested to know, though, what happened after the teddy bear and flowers.I’m sorry, but this argument holds no water. I just don’t think ending innocent life is preferable to the slim possibility that a rapist may assert his parental rights and prevail.

She was scared of him and avoided him. They were both still law students. She didn't tell anyone what happened until a few years later.

I agree with Ann's point.

And I do have to say that the lack of a rape and health exception assumes that a woman wouldn't commit suicide in this situation.

I think that a rape and a forced pregnacy could result in extreme emotional trauma and instability.

Ambivablog finds the same kind of intramovement split you're talking about in the Darwinist movement and (comments section) the Democratic party. I hope that this conjunction signals a general dampening of the political pendulum's wild swings.

I hope that this conjunction signals a general dampening of the political pendulum's wild swings.

You could argue that the original Roe v. Wade pushed the pendulum too far in one direction. Clearly, though, the SD ban is too far in the other direction. I mean, it's not like a ban on abortions will actually stop them from happening. Rather, the rich will know someone who will take care of things, and the poor will not. And the US will have come full circle.

Pete said: Goodness, Marghlar, what kind of world do you live in? As I said, it’s hard enough to get a father to assert his rights under normal circumstances. What makes you think a rapist will want to have anything to do with the results of his handiwork...

In response to a post in which I had said: "Do I really think this is a big problem? Probably not -- because very few rapists are going to be showing up to claim parental rights."

So, if you read my post, you know that I probably mostly agree with you that this isn't a huge problem. I just thought you were mimizing the difficulties that would present themselves in the rare case where this would arise. I think Ann presented us with a very plausible scenario in which this could take place (I've personally known of some situations very like that, although fortunately there was no child fathered from the crime).

Terminating parental rights is not difficult when the father is a rapist or otherwise fails to demonstrate any kind of interest in the child.

To say this is to assume that you can prove rape, which is the problem in the first place. You are also assuming the rapist will leave the woman alone. If he stops by often enough to demonstrate some interest in the child (further traumatizing the woman in the process) it will be hard to TPR him, absent some other grounds. This is not implausible, given that most rapes are not stranger-rapes, but acquaintance-rapes. Many women I know who have been rape victims are still encounter their attackers socially from time to time.

And shouldn’t it be difficult to terminate innocent life? It’s difficult to deprive a convicted killer of life. Why a different standard for innocent life?

Ah...the standard refernce to "life." What do you mean by this? We kill living things constantly -- as animals, we have to do it to survive. What is problemmatic is killing a person -- we try to make that difficult in our society. You and I disagree about whether the undifferentiated bundle of cells produced by fertilization, which is incapable of surviving outside the womb, is a person in any meaningful sense. I have trouble considering it to be such. Thus, I am not a big fan of policy proposals that involve harming people for the benefit of an embryo, or a pre-viable fetus.

Ann: frankly, you don't even need the breakup. I've known plenty of rapes to occur within abusive relationships. Often, the woman is too terrified to leave, because she fears violent retribution. I'm sure there are a fair number of women who are raising the children of rapes, with the rapist present and assuming a parental role (albeit, usually a terrible one).

So pete, I guess I take it back. I think this scenario is more common than you might realize. Your problem is that you only envision the stranger rapist, not date rape or partner-rape. The last two are more common, and the man usually doesn't wander off an disappear.

Today, the Pope took the position that a human embroyo has rights from conception, before it is implanted in the womb.

The right to life movement does not restrict itself to surgical abortion but also opposes "plan b," and other medication that prevents -- or might possibly prevent -- an embryo from being implanted in the womb. Some in the right to life movement object to the birth control pill and the IUD because of the possibility that they could destroy microscopic human life.

Rape victims should have the opportunity to get medication to prevent an embryo from being implanted in their wombs. (I believe they should have the right to abortion as well).

Any idea about providing for court hearings to prove rape, etc., will only entail delay that may lead to late-term abortions or eliminate the possiblity of abortion.

It is true that if the reason for disallowing abortion is the right to life of the fetus, the means by which the fetus was created (rape or consensual sex) is not relevant. But obviously one reason for some to oppose abortion is to penalize women for having sex without the consequences -- pregnancy -- and that reason does not apply to women who become pregnant involuntarily.

proudtobealiberal: yeah, and there is that issue of the thousands of excess embryos in cold storage. I guess logically the life-beings-at-conception crowd would say we need to get court orders for implantation of those embryos in a randomly selected pool of women. After all, if the embryo's rights supersede the woman's rights, then it shouldn't matter whether the embryo was created within the woman's body in the first place, right?

Of course, that step to me seems barely distinguishable from legalizing rape itself. But it does flow logically from the proposition that life is sacred from the moment of fertilization.

I guess logically the life-beings-at-conception crowd would say we need to get court orders for implantation of those embryos in a randomly selected pool of women.

If I recall correctly, there's actually a significant pool of people in the anti-abortion movement who are, in fact, trying to "adopt" these embryos (and embryos up for abortion) for implantation in themselves. Or at least preservation until a willing host can be found.

"You and I disagree about whether the undifferentiated bundle of cells produced by fertilization, which is incapable of surviving outside the womb, is a person in any meaningful sense. I have trouble considering it to be such."

Then why are we discussing this matter? You don’t believe a right to life exists but I do. And so does the State of South Dakota, apparently. Once you’re on board with us, maybe we’ll have something to go back and forth about. Until then, thanks for the polite and stimulating conversation.

Ann wrote:

"Allowing this kind of person to further hold onto the woman by imposing pregnancy on her is a real horror. Pregnancy is a long physical ordeal for a woman. You would let the rapist impose it on a woman, in addition to imposing the short physical ordeal of the rape itself."

That seems like a better argument than worrying about a rapist asserting his parental rights. It doesn’t make sense that a fetus should be destroyed to save it from being raised by a rapist, which is what the opponent to the South Dakota law, in effect, argued. Ah, but you touch on what would probably be the remedy to the problem of conception by rape: the health of the mother. Certainly we zealots are opposed to a medical exception defined so loosely that any exception could be granted but surely in the instances you cite a strong case could be made that the health of the mother would be in jeopardy should the baby be carried to term. I find that no more burdensome than demonstrating her physical health is in jeopardy. Both would require either administrative or judicial approval, though I admit the libertarian streak in me balks at this notion.

richard lawrence cohen wrote:

"Isn't it weird how abortion takes over a conversation?"

Indeed, it’s strange, even though that’s what this thread is about. A few posts down, the discussion on the death penalty veered off into abortion. Evidence the issue is strongly felt.

proudtobealiberal wrote:

"But obviously one reason for some to oppose abortion is to penalize women for having sex without the consequences. . ."

I don’t follow your leap of logic and, frankly, I resent your implication. My concern is for rights of the unborn, not the circumstances of conception. I believe both men and women should be responsible with their sexual activity.

It sounds like you support a health exception, but I have heard others on this blog argue against an exception for maternal health.

The South Dakota law does not have a health exception.

My argument, as such, is not that masses of rapists will impregnate women and consequently assert their paternal rights. Rather, I am saying that this situation is possible, and likely to happen at least once. Women trying to escape from abusive relationships, for example, could end up having their children held hostage. Or a woman would understand the danger, and attempt an illegal abortion.

We should recognize the possible hardships of this law. That doesn't mean you can't support the law, but we shouldn't deny the natural consequnce of law in practice. To do less is lying to ourselves and others.

I do think that Americans have a moral responsibility to recognize the pragmatic consequences of laws that are passed. If the law is passed, we certainly shouldn't ignore the problem of rape and pregnancy.

By the way, I personally do not think that the abortion rate will drop if it is criminalized. There are records and good estimates of the numbers of legal theraputic abortions and criminal abortions in the U.Ss from the 1930s through the 1960s. I do, however, expect that hospitals will need to reopen their septic wards.

I cannot comprehend why pro-life people think that the criminalization of abortion will reduce abortion rates.

The theoretical and moral implications of law are fun to debate. However, law in practice generates its own set of facts and consequences.

pete: I'm not hostile to people who hold views, but I may be somewhat hostile to the ideas. Note -- I support, to some degree, the argument that Roe was wrongly decided, and that this is an issue for state consideration. But that doesn't mean I think that outlawing abortion is a choice I would applaud; rather the opposite.

I think my analogy is apt. Rape involves forcing someone to submit to a physical experience that they would prefer not to undergo. Denying a woman the right to terminate a pregancy forces her to submit to a physical experience (being the host for a gestating fetus) that she would prefer not to undergo. And in the case of rape, one she never chose to undergo.

To forbid a woman to abort a fetus produced by rape is to perpetuate the rape itself -- lengthening an initial unwanted contact into nine more months of physical subordination. So, I think prohibiting abortion in cases of rape is tantamount to permitting rape itself -- it forces the woman to submit to a sexual/biological/procreative process that she has not consented to.

I don't see that saying this indicates that I am hostile to you -- I think its a legitimate point of view. I certainly have no animosity towards you, and I enjoy a spirited debate on almost any issue. That is why I was disappointed to see you suggest that we cannot have a fruitful conversation when we disagree about a premise (where personhood attaches to a human organism). I am open to your attempts to convince me that I am wrong; it is dissapointing that you would not feel the same way.

Do you think that disagreeing with you indicates animosity? I certainly feel none. And I was enjoying our conversation. I generally enjoy interacting with people who disagree with me, more than people who agree. It forces me to clarify what I think, which is always a good thing.

balfegor: I certainly applaud pro-life women putting their bodies where their mouths are, on this issue. Seriously -- I think its a nice thing, and there is certainly no harm in choosing to bear another's embryo rather than conceiving your own.

My point was that, to the degree that there aren't enough women who would freely choose to do this, a position that elevates an embryo's right to implantation over a woman's right not to be a gestational vessel, logically leads to the proposition that women ought to be required to submit to implantation, regardless of their consent.

If one is willing to say that women must gestate the products of rape, how can one logically exclude this corollary?

My point was that, to the degree that there aren't enough women who would freely choose to do this, a position that elevates an embryo's right to implantation over a woman's right not to be a gestational vessel, logically leads to the proposition that women ought to be required to submit to implantation, regardless of their consent.

Well, I think you're skipping a step there in that chain. We all of us have a right to life (more or less), such that the state will not intervene to kill us without due process. We also have a more generalised right to life, protected under law (if not the Constitution) such that people generally may not murder us. But the fact that we enjoy such a right does not logically entail a "positive" right to be free from untimely death. Our right to life does not create special rights against the whole class of our fellow citizens, such that they may be obliged to support us, e.g. by preventing us from starving (because we have no job), or freezing to death (because we have no house), or dying of heatstroke (because we have no cooler). Stated even more generally, the right to life does not create a corresponding legal duty to rescue.

Why should it be different with fetuses? The particular right of the fetus -- if we suppose arguendo that it enjoys a right to life which would be infringed by abortion -- attaches in particular circumstances to a particular woman, its mother, saying only to that woman that she may not kill that fetus (except, perhaps, when she is in danger of her own life.) On the other hand, if we are presented with a fetus outside of a womb, such as a frozen embryo, why should some random woman off the street be obliged, under law, to rescue that fetus by having it implanted in her womb?

Certainly, some women will feel a powerful moral obligation to do so, just as many people in other circumstances feel it their moral duty to help the poor and the homeless. But that moral impulse need not rise to the level of a legal duty. And I think, under our legal system, it would not.

"Most rapes are date rapes... So, you have many, many cases where it is simply the victims word against the rapists, on the issue of whether the sex was consensual."

Wouldn't this problem exist, and be even more commonly encountered, if there was a rape exception to an abortion ban? Personally, I would support such an exception, but this does seem to be a fairly significant practical hurdle, unless it is assumed that the burden of proof would be extremely low.

Haha -- thinking about abortion through the lens of duties to rescue leads me to trespass and whatnot and that leads to rather fun results. E.g. the distinction between the fetus in rape and the fetus arising out of consensual intercourse is analogous to the distinction between invitee and unanticipated trespasser, no? Suggesting, in turn, that the duties owed the other party (the fetus) in each situation should be analogous (and reduced, for the rape fetus)! On the other hand, the duty to avoid manmade deathtraps, even for unanticipated trespassers, suggests a corresponding duty to avoid procedures that will surely result in death (e.g. by preventing attachment of the fertilised embryo to the wall). There's no way to fulfill the duty to warn effectively, after all, with a fetus whose nervous system has not yet differentiated. In that regard, perhaps the fetus is less like an adult trespasser, and more like a child (say, an infant) lured in by an attractive nuisance, and impervious to warning signs (because it cannot read yet).

But the analogy also suggests a remedy, no? Although one may not hunt down and kill those who have trespassed on your lands, you can call up the police to have him removed, right? To the extent, then, that we can extract embryos and freeze them, such that they will develop normally afterwards (I have no idea what extent this is), perhaps the appropriate remedy is to permit women who want an early abortion to have the embryo merely extracted (under the watchful eye of the state), then frozen until such time as someone comes along, willing to let it flower into full development!

A rape exception just brings a horrible new set of problems. Does a woman have to report a rape to preserve her right to have an abortion? This would be even before she learns that she is pregnant. Do you really want this new incentive to construe ugly sexual experiences as rape? How often do women refrain from calling the police after very bad experiences with husbands and boyfriends? Now we must bring the police into our lives or implicitly accept a pregnancy? Are you sure you've thought through what life under this regime will be like -- for women and for men?

The unpleasant reality is that someone has to make the decision about pregnancy, and there is no one better than the person whose body is the subject of the decision. Arguments about the value of the embryo/fetus/child should be addressed to the women who face the pregnancy.

This legal concept was used in 19th century America in the case of civil seduction laws. In one simple example, under the civil statute a father could sue the seducer for the time and labor lost that his daughter devoted to carrying the baby.

Later this law became a criminal statute. A man (the seducer) could be tried as a felon and put in jail for up to 4 years. While pregnancy itself was not the crime, it was the evidence used in the trial that a crime had occurred.

(Criminal Seduction was generally defined as sex with a formerly chaste girl/woman.)

These laws recognized that unexpected, non-voluntary, and unmarried pregnancy, childbirth, and motherhood was a burden on a woman and her family. In the case of the criminal statute, the law recognizes that men "knocking up" unmarried women can be harmful to the "victim." (not to be crude, but this was the legal thinking.)

It seems that pregnancy, childbirth, and motherhood is too easily dismissed as an easy process. It requires labor, both reproductive labor and domestic labor.

If this law stands, at the very least the state should monetarily compensate women for their reproductive labor and lost time.

Balfegor said: Why should it be different with fetuses? The particular right of the fetus -- if we suppose arguendo that it enjoys a right to life which would be infringed by abortion -- attaches in particular circumstances to a particular woman, its mother, saying only to that woman that she may not kill that fetus (except, perhaps, when she is in danger of her own life.)

Well, then, would you support abortion by induced miscarriage, so that the fetus is only harmed once it is outside the mother's womb -- i.e. basically the withdrawal of life support? To the extend that we have no duty to rescue, it seems that a woman should have no duty to preserve a fetus's life solely because it is gestating inside her -- especially if it is doing so without her initial consent (in cases of rape or accidental impregnation).

I think it is too facile to say that there is a line between implantation and prohibiting abortion that is as clear as you make out. Prohibiting abortion is in essence forcing a pregnant woman to aid a gestating fetus against her will. When that prohibition extends even to cases where she never consented to the impregnation, I just can't see the distinction between prohibiting abortion and forced implantation.

Per your trespass example: this is actually much closer to imposing a duty to house and feed a needy trespasser for a period of time. Something the law has never imposed.

Re: your extraction and freezing scenario -- I doubt it's feasible, because most women don't know they are pregnant until after implantation.

As you said, all this is to assume arguendo the personhood of the fetus -- something I think is quite doubtful.

I was being a bit more specific -- it's possible to view the fetus as having a legitimate right to life (Constitutionally speaking) that is not infringed by abortion, because there is insuffficient state action involved in the abortion process. As far as I know, the right to life is not infringed by murder, only by execution.

To the extend that we have no duty to rescue, it seems that a woman should have no duty to preserve a fetus's life solely because it is gestating inside her -- especially if it is doing so without her initial consent (in cases of rape or accidental impregnation).

Well, let us leave aside rape for the moment then, it being a marginal case in any event -- the fetus gestating inside her is in almost all cases there because of her actions. The analogy would then proceed that while you have no duty to rescue towards anonymous fetuses unconnected with you, you do have a duty towards those you take steps towards, somewhat like the first rescuer who should appear on the scene. And in all cases save rape, the woman does take steps towards the fetus -- she chooses to have sex.

But my point, more generally, was not to argue that this particular analogy is the analogy we should be working off of, but that your earlier conclusion was itself absurdly reductionist:

I guess logically the life-beings-at-conception crowd would say we need to get court orders for implantation of those embryos in a randomly selected pool of women.

No, logically they would say no such thing. That does not follow in any way at all from the principles our law operates under. A reasonable line-drawing is possible, and though we may quibble about where the line should go, the place you say the line "logically" ought to be is not a "logically" possible place.

Oh -- and I forgot the most obvious rejoinder to your rejoinder to my duty-to-rescue analogy: "No duty to rescue" applies between strangers. But there is (or was -- I forget whether it has been abandoned in modern law) a duty to rescue when there is some pre-existing relation between the parties.

If you are a pro-life religious right person, you are probably all for this. As a Democrat, I'm against it.

But, for those 'moderates' who may be conservative on some fiscal issues but pro-choice on abortion, and who have quit advocating divided government and have recently elected Republicans to the White House and the Senate, just keep in mind that this is part of the package.

Well, let us leave aside rape for the moment then, it being a marginal case in any event -- the fetus gestating inside her is in almost all cases there because of her actions.

Any my point was a reductio ad absurdium of the position that abortion should be prohibited even in cases of rape. I don't see how there is reasonable line drawing between that position and forced impregnation.

On the March 3 NewsHour, the following exchange took place between the interviewer (FRED DE SAM LAZARO) and a veteran South Dakota legislator who supports the abortion bill:

FRED DE SAM LAZARO: Napoli says most abortions are performed for what he calls "convenience." He insists that exceptions can be made for rape or incest under the provision that protects the mother's life. I asked him for a scenario in which an exception may be invoked.

BILL NAPOLI: A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl could be so messed up, physically and psychologically, that carrying that child could very well threaten her life.

Hmm. Seems that this Napoli fellow did not get the memo that the circumstances of conception have no bearing on the right to life among the unborn. And this coming from a guy who supports a ban that allows no exceptions for rape, incest, or the health of the mother.